newmarket wrong to ban circus animals, court rules

2009-06-16

Gail Swainson, Toronto Star

A Superior Court Justice has ruled in favour of the Shrine Circus, saying that Newmarket town council was wrong on several fronts in refusing an application for performing animals at the show, slated to hit town tomorrow.

But Justice Michael Brown stopped short of issuing a court order allowing the animals to perform in two shows at the town-owned Ray Twinney Recreation Complex.

This left lawyers on both sides scrambling to decide what their next step would be.

"We will be seeking legal clarification so we fully understand the decision," Newmarket Regional Councillor John Taylor said just minutes after the decision was handed down in the Ontario Superior Court of Justice.

"It's such a baffling decision," Taylor added. "We will have to figure this out with legal counsel."

Xentel DM Incorporated, which stages the circus for the Shriner's, had asked Brown to scrap an earlier decision by the town that banned performing animals at the recreation complex, saying it infringed on their Charter rights to self expression.

Council said the facility was ill-equipped on a number of fronts to handle large animals such as elephants. The circus has two performing elephants, seven Arabian horses and 10 dogs.

Court heard that council refused Xentel's application to bring the circus to the multi-use recreation complex on the basis that it is not an appropriate or safe venue for large circus animals. Concerns were also raised about sanitary issues and the impact housing elephants in the parking lot could have on area residents.

Town officials say the facility and its ventilation system is not designed for large animal acts and having the circus there for two days will affect other users, including swimmers.

Also cited were concerns over prior incidents at the complex. Two years ago, two elephants with another circus broke out of their pen at the complex and took a stroll around the adjacent residential neighbourhood. They were rounded up without incident after trampling some lilies and eating grass and leaves. In another incident, an elephant grabbed an employee by the leg, who was then hoisted 1.5 meters in the air until a trainer intervened. Another shoved a Zamboni blocking its way.

At the hearing earlier this week, Justice Brown was told by Xentel lawyer Stan Makuch that Newmarket council behaved in bad faith by debating the issue behind closed doors and including no reasons with their decision.

But town lawyer George Rust-D'Eye said Xentel was notified by letter of the decision and reasons. He also told Brown the lease application was handled in the same fashion as any other routine administrative matter.

Circuses using performing animals are starting to go the way of the dinosaur, facing an increasing tide of public opposition and a growing list of banned venues.

In 2000, Nova Scotia banned marine animals, fish, bears and non-human primates from the circus. In British Columbia, some 20 municipalities have restricted the use of circus animals. Ontario has yet to pass a province-wide ban.